Legal Specialty Not Required for Affidavit of Merit

November 8, 2011

A Law Division judge has held that an Affidavit of Merit in a legal malpractice suit does not need to be issued by an attorney who practices in the same area as the lawyer being sued.  In Manger,HNT-L-76-11, plaintiff sued her former divorce attorney alleging that proper discovery was not conducted with regard to her husband’s finances and that counsel failed to obtain a proper valuation of his business.  Manger’s malpractice attorney asked 11 family law attorneys to issue an Affidavit of Merit in this case.  These attorneys declined that request.  Manger then obtained an Affidavit of Merit from an attorney whose practice did not include family law.  That attorney found that Magner’s former attorney’s representation in the divorce matter “fell outside professional or occupational standards or treatment practices.”

Counsel for the former divorce attorney moved to strike the Affidavit of Merit and dismiss the suit due to the fact that the attorney issuing the Affidavit of Merit lacked experience in family law to issue such an opinion.  Manger argued that a good-faith effort was made to obtain an Affidavit of Merit from a family law attorney.  Further, Magner argued that the issuing attorney was a certified civil trial attorney which permitted him to opine on the former attorney”s representation as the allegations involved civil litigation (e.g. discovery issues and business evaluation).

The Court noted that in malpractice cases, other than involving medical providers, the individual issuing the affidavit “must have particular expertise in the general area or specialty involved in the action.”  In this case, the Court found that while the attorney issuing the Affidavit of Merit was not a family law attorney, his experience in litigation can form the basis of his opinion.  Accordingly, Magner’s former attorney’s motion was denied.

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Defense Verdict for Doctor Who Amputated Man’s Penis

August 24, 2011

A Kentucky jury rendered a verdict in favor of a doctor who amputated a part of the penis of a man without first obtaining his consent.  Originally, the plaintiff was to undergo a circumcision.  However, during the procedure, plaintiff’s doctor claimed to have discovered cancer.  Due to the nature of the cancer found, the doctor felt he had no option but to perform the amputation immediately.  Plaintiff filed suit against the doctor.

As reported at the courier-journal.com:

SHELBYVILLE, Ky. — A jury has rejected a truck driver’s claim for $16 million in damages after a doctor amputated part of his penis without his knowledge.

The six-man, six-woman jury in Shelby County Circuit Court said that Phillip Seaton, 64, of Waddy, should get no money in the lawsuit.

The jury was given the case just before lunchtime Wednesday,and returned with its verdict about 1:45 p.m..

In final testimony during the third day of the civil trial, a Kentucky urologist said if Dr. John Patterson had taken the time to consult with Phillip and Deborah Seaton about his surprising discovery of lethal penile cancer, the cancer would have had more time to spread.

But a doctor who testified on behalf of the Seatons on Tuesday said the situation was not an emergency and removing a man’s penis is the “most psychologically debilitating” procedure.

Phillip Seaton testified on the first day that he wanted to flee the hospital after learning the news.


Appellate Division Rules that Expert Cannot be Sued Over Opinion Expressed in Legal Malpractice Case

March 14, 2011

The New Jersey Appellate Division has held that a legal malpractice claim can not be maintained against an expert who served in an unsuccessful malpractice action against another lawyer. In this matter, Malcolm Blum served as the attorney for Paramus Jewelers, which was owned by Yeghoutiel Rabbani, George Fahmy and Burhan Aras. Under their operating agreement, a right of first refusal was given to the business in the event that another owner sought to sell his interest in the business. In 2001 Aras sold his interest to Fahmy without first advising Rabbani. A lawsuit was then filed by Rabbani against Fahmy and Aras. During the litigation, Rabbani obtained an expert report from Michael Ambrosio who opined that Blum had committed legal malpractice. Ambrosio found that Blum’s representation of Paramus Jewelers and Fahmy violated ethics rules, constituted a breach of his duty owed to the company and committed legal malpractice. Blum was subsequently sued. In February 2008, summary judgment was entered dismissing the malpractice claim brought against Blum.

Blum’s malpractice carrier refused to provide coverage. As such, Blum retained the law firm of Reilly, Supple and Wischusen to represent him in the malpractice lawsuit. After obtaining summary judgment, the total fee for legal services rendered totaled $102,000. A fee dispute occurred and Reilly filed suit against Blum to recover their fees. Blum in turn filed a third party complaint against Ambrosio alleging legal malpractice.

Blum’s third party complaint alleged that Ambrosio’s opinions in the underlying action “were negligently prepared and constituted malpractice.” Ambrosio moved to dismiss the third party complaint. In his opinion dismissing the third party complaint, Judge Wertheimer (the trial judge) noted that “the questions presented are whether [Blum] has a cause of action for malpractice against an attorney who served as an expert witness for his opponent, and whether [Blum’s] daughter, an attorney, can provide the affidavit of merit for this case.” Judge Wertheimer found that the litigation privilege barred Blum’s cause of action against Ambrosio and dismissed the third party complaint.

Ambrosio then filed an application for monetary sanctions against Blum (he alleged that his defense costs totaled $25,000). Blum filed a cross application for reconsideration of the court’s dismissal of his third party complaint. Judge Wertheimer denied Ambrosio’s application for sanctions and Blum’s request for reconsideration.

The Appellate Division found that “in addition to the litigation privilege, which clearly bars Blum’s claim against Ambrosio, Ambrosio did not owe a duty to Blum in the underlying litigation.” It further noted that “attorneys may be held to owe a duty to ‘non-clients when the attorneys know, or should know, that non-clients will rely on the attorneys’ representations and the non-clients are not too remote from the attorneys to be entitled to protection.'” Accordingly, the Appellate Division upheld the dismissal of Blum’s action and the trial court’s refusal to grant Ambrosio’s request for sanctions.

Interestingly, the Appellate Division did not reach the issue of whether the Affidavit of Merit was valid. The Affidavit of Merit statute provides that the expert issuing the Affidavit certify that they have no financial interest in the matter they are offering an opinion. In this case, Jennifer Blum issued the Affidavit of Merit. She is not only the daughter of Blum, but a member of the same firm.

Reardon Anderson represents the interests of businesses, insurance companies and individuals throughout New Jersey and the metropolitan New York City area. Please visit our website at http://reardonanderson.com to learn more about our firm.